Illinois Court to Rahm Emanuel: Be a Voter, Not a Candidate

If you don't have the time or inclination to read the 25-page decision that has stunned the Chicago mayoral campaign of Rahm Emanuel, here's what it comes down to:

A 2-1 majority of an Illinois Appellate Court panel on Monday interpreted some admittedly imprecise state statutes to mean that Emanuel, the clear frontrunner, can vote for mayor on Feb. 22 but he can't run for mayor.

Sound really dumb? It is really dumb.

When the Chicago Board of Elections initially ruled in his favor, it seemed to use what most of us would consider common sense. Most notably there were the notions of whether he'd "resided" in Chicago in the year prior to the election and whether he was impacted by a broader exception for those who'd spent that period in "government service."

In both cases, the board said that Emanuel, way ahead in polling and lapping the field with his organization and fundraising, was in good shape. On the residency matter, the board characteristically relied heavily on intent, considering whether Emanuel intended to remain a resident despite being in Washington as President Obama's chief of staff.

After renting out his North Side home and moving his wife and three children to D.C., Emanuel maintained the Chicago address for his voter registration and driver's license, along with paying property taxes and, important to the board, keeping furniture and loads of personal belongings there.

So now comes a decision which harkens back to the 1818 state constitution to argue for a strict constructionist definition of "reside" and to say that the exception for government service was meant only to apply to those in the military.

And, in an administrative aside not picked up on in the initial reporting on the decision, the court did not certify the case immediately for state Supreme Court review.

That means a few extra days of delay for Emanuel to go through now-necessary formalities in seeking to appeal that he be certified as a bonafide candidate for an election in which early voting begins on Jan. 31, and for which ballots will be printed starting tonight.

"You have a right to vote but not necessarily to run for office" —John Marshall Law School Professor Ann Lousin

Now, he conceivably could be shafted by the court simply not taking the case.

Indeed, in recent years, the Illinois Supreme Court has made rulings on only two of many hundreds of decisions by the Chicago Board of Elections. (It affirmed one and reversed the other on a technicality.)

Conspiracy theories will now run rampant. The Illinois Supreme Court has four Democrats and three Republicans. One of the Democrats, Anne Burke, is the wife of influential Chicago Alderman Edward Burke, perhaps the most high-profile supporter of lawyer Gery Chico, Emanuel's best-funded rival.

Does Emanuel seek her recusal and roll the dice with the remaining six judges, knowing full well that a 3-3 deadlock, if that's how it winds up, would leave the appeals court ruling in place?

You have to figure that he doesn't seek to get her booted if the court takes the case. And that would place Emanuel in a real bind, theoretically leaving him with the mildly-desperate hope that the wife votes directly against the interests of her husband, a longtime enemy of Chicago Mayor Richard M. Daley and no friend of Emanuel's.

And what about his odds with another Democrat on the court, Charles Freeman? He's a longtime chum and product of the Democratic Party establishment here of which Burke, far more than Emanuel, is a fixture. It's an establishment which surely sees Emanuel as a threat and might well be more comfortable with any of his three prime opponents.

After reading the decision, and wanting to find an unequivocally neutral voice to analyze it, I tracked down Ann Lousin, a professor at John Marshall Law School and one of the true experts on state constitutional matters. What did she think?

"Theirs' [the majority] is an exercise in statutory construction," she said. "It shows how the Illinois Municipal Code and the Illinois Election Code don't always jibe."

She agreed with my initial interpretation that they differentiated between being a voter and being a candidate. And, yes, if you look at the legislative debate on the "government service" exception, they were mostly talking about folks in the military. Finally, in Illinois there's always been a seemingly higher bar for candidates than voters.

"You have a right to vote but not necessarily to run for office," she said.

But when I cut to the chase and asked perhaps the smartest person on these matters in Illinois what side she'd feel more comfortable arguing, she was clear:

"I would be more comfortable saying the man is legally qualified to run for office since he left all those things in the house," said Lousin. "My goodness, he left the children's reports cards in the basement."

But this is Illinois and a traditionally highly politicized court system, where a small army of patronage hacks and mediocrities populate the bench in an elective, not merit-selection, system. Emanuel has raised about $12 million so far, dwarfing the entire field, but must now rely heavily on just crossing his fingers.